Your blawger, he is conflicted. Part of me does not want to give the—ahem—geniuses behind the DUMB STARBUCKS stunt any more press, but the rest of me feels that you, our readers, deserve to know at least my opinion, which is that there is no way in Hades that the aforementioned—ahem—geniuses will be able to survive any attempt by the real Starbucks to shut down their pretend art installation masquerading (poorly) as social commentary that is really just a pop-up cafe blatant ripping off the latter’s registered trademarks. There, I said it.

If you haven’t already heard: A “parody” [see here for a sort of primer from the LOC archives — RDC] coffee shop sprung up in Los Feliz, California (of course), called DUMB STARBUCKS. According to the Los Angeles Times, “Walking into the… unit, which over the weekend drew long lines while offering free joe, is like entering a real Starbucks, except that almost every label and circular logo inside also features the word ‘dumb.’”

Caffeinated and conflicted.

A sign at the store, printed on stationary topped with the DUMB STARBUCKS logo, offered answers to “frequently asked questions.” If this isn’t a prank that ends soon, then this flyer will be Exhibit 1 of the plaintiff in the trademark infringement lawsuit that Starbucks brings, because the statements made on the FAQ sheet damn the dumb undeniably.

Is this a Starbucks? No. Dumb Starbucks is not affiliated in any way with Starbucks Corporation. We are simply using their name and logo for marketing purposes.

Um, okay. So you admit right out of the gate that you are marketing something—coffee products, obviously, in direct competition with the company whose registered trademarks you also admit you are using, without permission (that’s implied).

How is that legal? Short answer – parody law.

Putting aside for the nonce that there really is no such animal as “parody law,” that’s an interesting short answer. The FAQ elaborates: By adding the word ‘dumb’, we are technically “making fun” of Starbucks, which allows us to use their trademarks under a law known as ‘fair use’. Fair use is a doctrine that permits use of copyrighted material in a parodical work without permission from the rights holder. It’s the same law that allows Weird Al Yankovic to use the music from Michael Jackson’s “Beat It” in his parody song “Eat It.”

I hardly know where to begin.

If you’re admitting that you’re “technically” making fun of something, then you’re never going to convince a judge or jury or me that you were genuinely attempting to make any real fun. Rather, you’re admittedly trying to exploit a doctrine that you sometimes call a law, which you evidently do not understand at all. Indeed, you’re referring to a copyright law doctrine, but you’re infringing on trademarks. (Sure, those trademarks are protected as well by copyright, but this isn’t a copyright matter.) And, worst of all (not really), you’ve drug Weird Al into this, when everyone knows that Weird Al does not invoke the doctrine of fair use to avoid getting permission to record his parody songs. Weird Al always, always gets permission.

So this is a real business? Yes it is.

Good to know. Because your revenues are going to be turned over to Starbucks Corporation soon.

Are you saying Starbucks is dumb? Not at all. In fact, we love Starbucks and look up to them…

Make it stop. It hurts. It hurts! You just… you just admitted that… I can’t continue. This is just too dumb. Fortunately, Starbucks Corporation is “aware” of this—ahem—hilarious parody and is “looking into it.”

Oh, also, as of yesterday, the establishment reportedly did not appear to have a business license. But that’s probably also okay under parody law.

Author:Matthew David Brozik

10 Responses to ““DUMB STARBUCKS”: Grasping at laws.”

Hm. Ron, you really think there’s a case to be made that this is a permissible parody? Even in light of the admissions that nothing here is actually being “made fun of”? And in any event, while fair use (by parody) of a work protected by copyright requires finding some commentary on the original… this is a trademark issue, where fair use is harder to find. And even if the analysis is different, I keep coming back to this: These pranksters stated on posted flyers that they “love Starbucks…”! If these guys are for real, as it were, and don’t already have a lawyer, they’re going to need one soon.

Yes, Dave, but… the signage in the store suggests that something will be sold… if this isn’t indeed just a pop-up prank. Of course, if there are no revenues… and this nonsense gets shut down soon by Shia LaBoeuf or whomever is behind it and doesn’t really understand parody or comedy… then Starbucks would be hard-pressed to sue for anything. But if, unlikely as it seems, this is a legitimate (er…) business attempt and not just an ill-advised art project, then there will be revenues, and then there will be a reckoning.

Trackbacks/Pingbacks

[…] How was this permissible? Short answer, it wasn’t. Parody was being claimed although this was not a parody. Folks often think that just because something is FUNNY it is legally a PARODY. This is a not the case. FUNNY ? PARODY. Because this is such a common assumption it’s a worthy to mention it again (and again, and again). For a terrific analysis of the DUMB STARBUCKS parody claim see my friend Ron’s blog post on http://www.likelihoodofconfusion.com. […]

The question of whether consumers are likely to be confused is the signal inquiry that determines if a trademark infringement claim is valid. This blog is about trademark law, copyright law, free speech (mostly as it relates to the Internet) and legal issues related to blogging.

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